Opinion
Department One
Appeal from a judgment of the Superior Court of Merced County, and from an order refusing a new trial.
COUNSEL:
The promise to pay for the services already rendered was within the statute of frauds. (Wakefield v. Greenhood , 29 Cal. 597; Vassault v. Edwards , 43 Cal. 458; Civ. Code, sec. 1624; Code Civ. Proc., sec. 1973; Luce v. Zeile , 53 Cal. 54.)
J. K. Law, for Appellant.
F. H. Farrar, for Respondent.
JUDGES: Ross, J. McKinstry, J., and Myrick, J., concurred.
OPINION
ROSS, Judge
The complaint counts upon a contract alleged to have been made by defendant with plaintiff, for the rendition of the services of the latter, and is sufficient. But the plaintiff's own testimony shows that prior to any agreement with defendant he had been employed by defendant's mother to attend her professionally, and pursuant to that employment had commenced his treatment of her. His recovery in the court below against the defendant included compensation for services rendered by him as well before as after the contract with defendant, and is not susceptible, as the record is presented, of severance. Certainly the services rendered prior to the contract with defendant were rendered at the instance of defendant's mother, and for them she was bound to pay. That debt was her debt, and for it defendant could under the statute only bind himself in writing. It results that the judgment and order must be reversed, and the cause remanded for a new trial. So ordered.